more convenient, more rewarding, more entertaining. year after year. it's the reason why we don't have customers. we have members. american express. welcome in. good morning from new york. i'm chris hayes. an afghan soldier killed a u.s. service member and contractor in afghanistan. it's the latest in insider attacks in the country. a former publisher and chairman of "the new york times" died last night. he took over the paper and led it for 34 years. we have jeffry, author of "the oath" a senior legalage cyst and

staff writer at the new yorker magazine. barbara, director of the lawyers for civil rights. "america's unwritten constitution" he's professor of law at the yale law school. president for the alliance of justice system. it is wonderful to have you here. this week, we have two blockbuster political events on the calendar. the first presidential debate and the return of the supreme court to washington. they will hear arguments since the first time on the affordable care act. a start and fresh reminder of the power of the court. the court returns with a docket packed with high profile cases and others likely to be heard. it's strangely almost entirely absent from the presidential campaign. it becomes alarming when you

look at the age of the justices. 76, 76, 74, and the oldest is 79 years old. let's not forget she's the fifth vote to uphold a decision in roe v. wade. >> i hope to appoint justices to the supreme court that will follow the law and the constitution. it will be my impression they will reverse row v. wade. >> it's very likely the next president of the united states will appoint several justices to the supreme court. that often is the most lasting legacy of an entire presidency. i find it strange, given the amount of coverage that citizens united has got, i found if i'm traveling or speaking to groups reporting, among progressive

folks, everyone knows citizens unite and hates them. everyone knows the court gave us citizens united, the court upheld the piece of legislation not just for this president but probably democrats of the last 30 or 40 years. yet, the court is nowhere in the election so far. jeff, you wrote about this yesterday. what is your take on why we are not hearing about the court on the campaign trail. >> because, i have asked political professionals this question repeatedly. democrats and republicans say the same thing. they say the people who really care about the supreme court are committed to their party anyway. the people who want roe preserved are going to vote for the democrats those who want it reverses are going to vote republican. the swing voters don't care even if they are pro-choice or against citizens united, they

are not motivated to vote so the candidates don't talk about it. >> it's interesting. we just completed a poll and found different results. in fact, a wide majority of the people do care about the court, are interested in the court, i think because of citizens united. perhaps they paid more attention around the decision of obama care. not only is there greater interest in the court, but there's also growing concern about the corporate tilt of the supreme court and the fact this is a supreme court that finds in case after case involving big corporations that they should retain power at the expension of the people. there is quite a lot of -- >> i actually think that's an interesting angle. the reason the court has been so -- has loomed to low in political life and the moments it's been a big election issue

is because of social issues. i think primarily because of roe. it's because of roe. in some ways, the conservative arguments against roe as a bit of constitutional jurisprudence is taking it out it creates a high stakes battle against the court. not an argument i agree with but one many people make. one of the reasons maybe the courts a little absent from this campaign is because of much of what the jurisprudence has been about. citizens united have not been in the social realm, they have been in the helm of the relationship of how much they can have. that doesn't -- people -- it's a harder point a to point b connection to make about how that affects your life. >> i can also say that one of the other reasons that people in the past paid attention to the court has been civil rights. people care about their civil

liberties and rights. there are many issues going on in state legislatures and other places that impact these issues. i think one of the problems is the court is so shrouded. it's hard to know what's going on in the court. >> you have to read jeffrey's book. >> i know, i know, i know. the average person, it's not in the news. all the coming cases all the time. it's not a common, where you don't see the ads about the court. i think it's a consequence people have not -- they just don't know what is up before the court. when a case is taken and it becomes a big decision that affects people's lives, that's when people get concerned and say what is going on. >> we are going to rectify that. it's going to be fun. >> so, here is one thing that also people -- that is shrouded. if you know the court decisions, you don't know which justice will retire and how that might

change which cases. if we have judicial independence -- >> term limits. >> it's what a lot of states do. we would know which seats would come open when, not speculate about his health or her family situation. >> you are a great businessman. we were writing the scripts saying this is awful. >> if we knew which seats were coming up open, we could actu actually have a conversation. >> when you say hi, how are you, it's a frayed question, not a social -- the point made about term limits or mandatory retirement, i hear it all the time. >> from who? >> everyone across the political spectrum. the idea -- remember the constitution was written and ratified in the 18th century. people died in their 50s.

so, the idea of routine 30-year terms, which is where we are headed now. one of the big issues of the supreme -- in the obama white house when they were deciding should we nominate wood or kagen, diane wood is 60, the other 50 at the time. that had a big impact. >> if things go where they are going, they are going to scout -- no written record and 80 years on the court. >> nominated in his 40s. >> it's an arm's race, too. >> there's no end to that. >> put up candidates for the federal bench that are older than their counter parts were with the bush and reagan administration. the fact of the matter is, there's not as big a bench for elevation to courts of appeal or

supreme court. i would say, it is a guessing game. what i think is the asumpx that ruth bader ginsburg will step down. she most likely indicated she might in the next four years. that will make a huge difference as to who the president is who is naming her replacement. >> people step down depending on who is president. at the time their resignation is up. they'd like to live forever. it's not given to them, so they prefer to clone themselves by stepping down in the likes of a like minded president. >> a plain spoken way, we leave when we like the president. >> scalia has been doing a book tour. he said in classic scalia combative way, would you wait until -- are you asking me, do i want a replacement set to work

undoing what i spent 25 years doing, no, i don't want to do that. >> they all think that. they don't express themselves that colorfully. >> she wants to serve until her idol, that gets her to the middle of the next president. >> term limits are a fixed term, 18 years is more independence from politics, you are not timing your resignation. >> bha is the life experience of these judges appointed to the court. what is their background? what is their real life experience? what have they done besides sat on an appeals court or had a solicitors background? what is the other -- have they done trial courts? these are real questions. what's the experience. >> this gets us to the make up

of the court or who might fill the court. i want to talk about that and talk about what the fallout from the affordable care act is going to look like. what the robert's court legacy will be going forward. that's all after the break. and every footstep should tell us we made the right decision. so when we can feel our way through the newest, softest, and most colorful options... ...across every possible price range... ...our budgets won't be picking the style. we will. more saving. more doing. that's the power of the home depot. right now get $37 basic installation on all special order carpet. [ "human" by the human league playing ]

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all right. we are talking about the supreme court which convenes tomorrow morning, sorry, monday morning. today is sunday. we are talking about what the consequences of the election are. we are waging a campaign right now. one of the things that has been absent from the campaign despite the fact if you look at george w. bush it's been enormous and lasted because of the youthfulness of the nominees. if you look at the supreme

court, there's the martin quinn score, trying to come up with a measure of the court's ideology. we have a graphic showing how it's moved over time. the court is very, very liberal after fdr gets over the impasse, the court striking down legislation. he threatens it with court packing. it's a disaster and he gets to appoint a lot of justices. then the famous court in the 1960s that gets us mir randa and a host of other decisions, very little court. down, if you look at the bottom, 2010, the argument. we have the most conservative court ever right now. so, people should keep that in mind as they think about the election and the possibility of opening up. bar brarks you said life experience matters on the court. that segways to who could we imagine being on the court if

barack obama is reelected and has to replace the justice and who if mitt romney were elected? >> well, in terms of obama, the great question the democratic presidents have been asking since clinton is, can you get a non-judge on the court? kagen was not a judge, but her background was judge-like. we were discussing earlier, the court that decided the board of education, one of the justices, not one had been a full time judge before. when alida replaced o'connor, they were all federal court judges. that is a terrible lack of diversity. she knew what it was like to raise money. >> she was a former state legislature. a lot of what comes in front of

the court are sta chte statutes. >> for the middle. >> citizens united is a case that talks about giving money to campaigns as if it's a first amendment speech driven process. a politician may say, can i tell you what goes on, why people give money to campaigns? >> yeah. >> i would think, if this president is reelected, because there are so few court of appeals judges who are the right age, he will have to look outside the judiciary, which i agree, is a great thing. it's not only understanding how government works, it's understanding people's problems, trying to fix their problems, address their problems, hearing both sides and trying to meet out resolutions of problems. i think i would also like to see

a justice who has been a civil rights lawyer, a public interest lawyer. >> the governor of massachusetts. >> beautiful. >> wait, wait, wait a second. can you imagine a union side laborer being confirmed with the supreme court with the senate we have? >> yes. we have to get away from this emotion that we have to put only safe people up for these seats. yes, if a president is willing to fight, and we have seen presidents fight for their mom knees and we, because we have to be heroes in this, also. but, if we are able to gin up our constituencies, i think we can do it. yes, i do. it will be a fight. a fight to end all fights but you can't win a fight unless you start a fight. i think putting up progressives is a possibility. >> that was one of the advantages of the sotomayor

nomination, she had life expeenexpeen experiences working as public interest and a judge. that is the challenge, put up people who are going to fight for the common man and woman. i also think there is this question that has been raised about the lack of an african-american woman on the court. never has been one. >> right. >> will this court actually -- will this president look at that issue? will there be more diversity? we have issues around religion, more religious diversity on the court. there's all kinds of issues. >> pthere are six catholics and zero jews. >> four people at the top of the presidential, vice president

presidential, one prod substantiate. mormon and catholic. >> really, genuinely, open to talent of all sorts. one thing, it again matters who the vacancy is. if it's ginsburg, there's probably more pressure to have a woman replace that than if brier steps down. >> if romney wins, and there's an unexpected vacancy from a justice appointed bay democrat, this would be -- that would be the titanic fight of all time. if the fifth vote to uphold roe is the vote that for some reason retires or leaves the court, right? and mitt romney is the president of the united states, that's the biggest fight ever in our lifetime. tell us what that's going to

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we are back talking about the supreme court, which is going to begin the new tomorrow tomorrow. jeffrey, i painted the picture of romney being elected. one of the justices having to leave the court for whatever reason, what the confirmation fight would look like. >> why that matters so much is basically a generation, the supreme court was dominated by moderate republicans. moderate republicans have disappeared from the supreme court like they have from the congress. the last three justices to leave, o'connor, suitor, stevens, all moderate republicans, they are gone. they have either gone to the democrat, suitor and stevens gave their seats to obama. the republicans who have been

appoi appointed, john roberts reflect the modern republican party. mitt romney, to be sure, would nominate someone like cavanagh, a young judge on the d.c. circuit. very conservative. not moderate republicans. that's why one seat would make such a difference. >> and those two have very clear records as did john roberts and sam aledo. we knew exactly who they were and what they would do. the senate wasn't ready to really look at that record and make an issue. >> can i ask a theoretical question. there's two ways of thinking about this. there should be a deference to the executive in naming nominees that comport with the president's legal philosophy,

ideolo ideology. applying confidence because they are qualified for the job and hey, this is politics and a woman's right to choose on the line, this is a war against all against all. do what it takes. which is your belief system? >> you have to be confident and have an exemplary record. we need a candidate, republican or democrat who will accept the progress that has been made and be willing to advance that progress. that, to me -- >> no republican nominee will meet that standard. >> here is why the senate matters a lot on the ballot as well as the president. >> very good point. >> it could be a republican in theory or democrat-democrat. we have seen in missouri and other places interesting shifts. so, the senate is not going to be filibuster proof. it's not 60/40 either way. it's going to be 52/48.

>> somewhere. >> something like that. filibuster reform also becomes a possible issue here. >> we haven't seen a filibuster, yet in recent years. >> in the '60s, but it wasn't a real one. >> we haven't seen a filibuster in the current modern era against a supreme court nominee, which is remarkable given the stakes and how often the filibusters vote. >> i think all bets are off. seriously. >> i know. it would be a total war. >> after you watch this last year of the lack of confirmations of judicial nominees from the obama administration, if you look at the politics that have been paid in the senate, everything has changed. the deference, all of that is out the window. it's just not the same. i think the next supreme court nomination, we are going to see a whole level of animosity, a

whole level of fight that is very new to us. >> let me put up this graphic which is the confirmation under clinton, bush and the president. george w. bush high, president obama high but ten points lower. to me, it looks like a one way ratchet. things move in the way of destruction, not back. >> republicans are more motivated on this. >> that's the problem. >> the democrats are not motivated on this. obama deserves responsibility. 78 have been confirmed, but he hasn't filled all the seats. he has not nominated enough judges to fill the va can says there. the republicans say how can you blame us. >> this motivation is so key and important. we saw it when, remember when the democratic senate was filibustering judicial nominees by george w. bush, the republicans had a big event called justice sunday, they cast

rallies across the country. it's when they threatened the nuclear option and brought cots in because their interest group cares about this issue more than, i think, with president -- you are doing god's work, ann, but i think more than the progressive base does. i want people watching this, just if you care about choice, i don't know if you do, but if you care about choice, the fifth vote upholding roe could very, very, very plausibly retire or not be in the court the next term. we have seen in terms of abortion politics the choice from the state level, the house republican caucus. that's not going anywhere. >> if you care about civil rights. >> i would say it's abortion but it's civil rights. workers right. environmental protection. >> why is it republicans are more motivated on this issue? is it because democrats are --

it's easier to attack? why is it? >> years and years ago, this was 1954, remember we saw people in the south with bumper stickers s saying it. from that moment on, there's been a growing crescendo from the right, roe v. wade. soldiers to this army. it's become a huge fund raising tool for the republican party. it's a way for republican candidates to nurture their base, rev up their base. >> as a political reporter, i think a huge part of it is the nature of the conservative base of the republican party and the degree they care about abortion and also the chamber of commerce and the degree they care about -- >> i just want to see one democratic president say i am the president who is devoted to the courts. i want to see -- i'm going to make that priority.

>> we don't see that because of interest groups. >> you didn't see it in clinton or obama. >> they have identified this asymmetric polarization. the republican party moved further to the right. they threaten filibuster reform, the nuclear option when they have a majority and democrats haven't yet. >> excellent point. one counter example -- >> nominations, younger than the democrats. there's asemitrihere. >> a lot of people thought affordable care act was going to be this. i have a cold, and i took nyquil, but i'm still stubbed up. [ male announcer ] truth is, nyquil doesn't unstuff your nose. what? [ male announcer ] alka-seltzer plus liquid gels speeds relief to your worst cold symptoms plus has a decongestant for your stuffy nose. thanks. that's the cold truth! boring. boring. [ jack ] after lauren broke up with me, i went to the citi private pass page and decided to be...not boring. that's how i met marilyn...

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which the five justices appointed by republicans outvote the four justices by democrats? strictly across partisan lines on this issue, on a very shaky in my lay opinion. it didn't work out that way because of john roberts. this is what you say in your book, "the oath." for roberts personally his vote to uphold the affordable care act an opinion where acts of strategic genius roberts laid down a marker on the scope of the commerce cause and bought space for himself for future rulings. people who don't remember x roberts found the mandate was constitutional under the taxing authority. as an exercise of the commerce clause, it exceeded the constitutional limits so he tipped his hat to barnett.

this is an on mouse statement to me. this gets me scared. then i think, he bought this down payment on credibility that he's going to use for 20 years. remember the affordable care act. i think this case was the third in a trilogy. bush v. gore 20000, obama care, 2012. five republicans striking at the heart of what the democrats wanted. roberts pulled back from that. i think he cares about the institutional reputation of the court, but, at the same time, he did not suddenly discover his inner moderate. he is a conservative judge. when we start talking civil rights cases and abortion, all the corporate agenda cases that have come before the court and will come before the court, this is a very conservative justice. now, he is bullet proof for accusations of political

hackdom. >> i believe that. jeff, you have a lovely mind and you are spectacular, but he is able to play john roberts the long game. part of the reason he is, he's appointed chief justice at a very young age. so he can be setting things up now. he's setting up his personal credibility and the credibility of his branches not partisan on every issue as the house and senate. >> can i make a point about the affordable care act. it's not my idea. the reasoning on -- this person said to me, if you are figuring out whether something is constitutional or not, you need to find the reason it's constitutional, throw up your hands. you don't go out after you found it crosses the threshold and say

there's this other thing. it's a bizarre thing. >> that opinion was so strange in so many respects. you had a jointly signed opinion by the four other republicans on the court. this strange, as you point out, this was like john robert's opinion about the commerce. >> just like his op-ed to the constitution. >> also, the other smart thing about this opinion is that it really removed -- the supreme court assen issue. >> that's right. very smart point. >> none of us is going to give john roberts a free ride now. none of us. >> well, you professionally can't. >> on the commerce clause, it sounds like the commerce clause, but it's really the foundation for progressive reform since the new deal. so, no, he doesn't have a free pass and as barbara and others

will say, there are a host of critically important issues coming up. >> are you worried, there's split opinions about what the commerce clause holding, if you can call it a holding, it's confusing, what the commerce clause holding means for this modern progressive estate. >> everyone in our office, when we read it were concerned about the views he expressed. this is the roberts the people that know him talk about. the one who likes to, once in awhile, shock and surprise people by taking a position that is in consistent with his general outlook. he did it in the case. he did it in the arizona case. he did it in this case. the question is, will that roberts surface more? is he really there? >> i'm hearing forget about it. >> you know, i think this ticket

was good for this train only. >> here is one thing about his mentor, chief justice rehnquist. i don't think there was a single case in chief justice tenure in which he was the fifth vote for any liberal outcome. >> thank you so much for joining us this morning. great to have you at the table. we are going to landmark cases, huge, huge, huge issues. will the voting rights survive? all of that is coming up next. does your phone give you all day battery life ? droid does. and does it launch apps by voice while learning your voice ? launch cab4me. droid does. keep left at the fork. does it do turn-by-turn navigation ? droid does. with verizon, america's largest 4g lte network, and motorola,

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great to have you here. >> thanks for having me. >> let's talk about the future of affirmative action in america not just before the court, but is on the docket. argue mlts are scheduled. it's the first big blockbuster case the court will hear. it's a case tomorrow about corporate personhood and this statute. we covered that before. it's a little in the legal weeds. we are going fisher because what appears to be on the table is whether the court will allow any kind, any kind of consideration of race as a factor in admission to higher education to promote diversity in the sense of affirmative action. chief justice john roberts has shown through a variety of writings to be incredibly hostile to this notion. there's a famous statement of his from a case called parents

involved in which the court struck down a mechanism for integrating public schools that was popular. the parents were behind it. it still was struck down and chief justice john robert's famous line is, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. it's a freshman, undergraduate level, i think. what is at issue in fisher? elise, lay out for us what's at issue here. >> the question the court is being asked to decide is whether the consideration of race and admissions at the university of texas is constitutional. it's important to have a sense of what the trajectory of the supreme court jurisprudence has been in this area. this case is about revisiting a previous decision by the supreme

court, 2003 case involving the university of michigan in which the court resoundingly upheld the use of race in admissions providing it's one of many factors and used to promote the benefits of diversity. the texas case is a little different. it comes on the heels of a law that was passed by the state of texas back in 1997 following a decision by the local court of appeals that banned the use of race in admissions. the state legislature essentially said if you graduate in the top 10% of your class, you are automatically admitted to the institution. that worked because -- >> american schools are diverse. >> the 10% law that admits the majority of students to the university of texas. the question is whether the separate admissions policy that considers race in an

individualized way is constitutional. >> the facts are complicated because of a two-tiered admission thing. if you are not in the 10%, you can still get in. they use race as a factor. the court found it's a compelling state interest that the government has a compelling interest in promoting diversity. the means of doing that is taking race into consideration to ensure there's a diverse classroom. the plaintiff in the case, who is a white student who did not gain admission. there's a line of cases of white students who didn't get admissi admission suing saying i'm being discriminated against. there's a lot of feeling that they are going to use this as an opportunity to do the full citizens united, which is come down with a decision saying you cannot use race at all. >> certainly, justice scalia and

justice thomas say that's what is required. the establishment in this country, fortune 500 companies are all behind diversity. very celebrated group of military veterans are saying we need affirmative action in the service academies. so, you know, all the big fortune 500 companies are saying we are competing in a global marketplace and cannot have them all white. we draw aur employees from these places. but, that's from the people who are filing griefs in that case. but the conservative movement in this country has done a really good job in communicating the idea that any use of race as john roberts said is discrimination. it's a powerful argument. >> i want to hear your thoughts but first take a quick break. more on that when we come back.

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we are discussing the supreme court's docket in whether they are going to strike down affirmative action in arguments they will hear wednesday. barbara, this is a case you have spent time on. >> yes. >> what do you think? >> this is a case that is coming from the fifth circuit, of all circui circuits, this is not a quote, liberal circuit. this is a very conservative circuit court that upheld this plan. if there's ever a plan the court should like is this plan. >> texas, the texas legislature voted for the plan. the conservative appellate court, the region in the south upheld it. >> when it was adopted, 79% of all classes at the university of texas austin had either no african-americans in the class or one. it was really a question about academic diversity and expression. it's important to look at this plan. this plan has no set asides, no

added points. it had individual consideration. it's you know, race is one of several, several factors. languages spoken. is your family a single parent household? they considered your musical abilities. >> they are lined up as equal considerations. >> there's a great argument that the plaintiff in this case, even if there was no race at all used, she still wouldn't have been admitted. that's important. >> let's be clear. what is important to understand is race is not an automatic consideration for any individual. race can count for anyone if you are a white student attending a latino high school for example and you have certain extracurricular activities, that might be a special circumstance. same with asian americans. it's very important to keep in mind that if this is a flexible consideration of race, which

really matters. the other important point to recognize here, folks like to focus on chief justice roberts, but justice kennedy is where the game is here. i think kennedy, himself, acknowledged in his prior decision regarding k-12 integration that diversity matters. he, you know, favors diversity and recognizes as a country, we are struggling with segregation. colleges and universities are uniquely situated to address this problem. we have segregation at the k-12 level. where else are we going to learn to live and work together except higher education. >> we are talking not about the great flagship institutions but private. they are not directed by the constitution. if the state can't do it under the constitution, private schools can't do it under private disskrcrimination law.

we are talking harvard. that would be dramatically different. >> it would be a huge mistake. seriously, when you consider our nation is fighting for its economic advantage, is fighting to be competitive. if you take out affirmative action and give this, we go back and resegregate all of our higher educational institutions, what a disaster that is for the united states of america. you consider where our demographics are now. >> just to go back to the plan itself, the legal question the court is going to entertain is whether there was a need to consider race in an individualized way on top of the 10% plan. going back to justice kennedy, i think what is important to understand here is that the individualized consideration of race in this supplemental policy

appreciates that racial minorities are not fudgeable. black students who attend segregated high schools have a different experience from segregated high schools. kennedy will like that. he's said he rejects the notion that everyone should be treated alike. all black students and latino students should be lumped together. >> this is not a legal point, but i'm amazed by the idea of applying to a school and not getting in and deciding to sue. i don't want to cast anything on this individual, but as a legal matter, this is a court that has shown itself incredibly, set a higher and higher bar. can you bring this to the court? in this case, it's unclear as the counter factual whether she would have been admitted without the plan. that's waved away. >> she's already graduated from

college. >> we know. >> why is this case -- >> another huge case that could have profound implication that might make the aca look small i would say is whether the voting rights act can survive the roberts court. let's talk about that after the break. why should saturday night have all the fun? get two times the points on dining in restaurants, with chase sapphire preferred.

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why not get buried ining for? something other than work? get two times the points on travel, with chase sapphire preferred. hello from new york. i'm chris haste. i have jeffrey, author of "the oath," barbara from the lawyers committee of civil rights sakhil and elise. we are talking about the supreme court which we'll be hearing oral arguments tomorrow. there is a lot that is on the docket or will be on the docket, we are assuming. we talked ant affirmative action and what its fate will be. a bitter issue in the context of

what has been going on in this election with outright attempts, in my hubble opinion, voters impression pushed at the state level. restrictions put on who can vote that have a disproportionate impact. the voting rights act, signature piece of american legislation, famous, obviously, a huge towering achievement of the civil rights movement signed in 1965 when lbj extended it by the congress. section five of the voting rights act, requires that certain states with a history of discrimination and barring voting, largely in the state's confederacy and other districts and other places, the bronx and brooklyn are covered under section five have preclearance. that means you cannot change the way you are going to redistrict

or go about changing voting rules without going to the department of justice first and saying, is this okay? because the history of these jurisdictions is using those mechanisms explicitly to disenfranchise people. there's a long history of that. that's what's on the table, right? >> yes. >> state of alabama brought a challenge to section five saying this is ridiculous. times are changed. stop it. the state of texas went around the preclearance process. we are redistricting the way we want. it came before a panel in the federal district of columbia. it was struck down, 2-1. so, the court has not said that they are going to hear the voting rights act, but it looks very likely, i think, right? is the general prevailing wisdom, they are. let me say, in previous, in 2009, they had a case that they

basically punted on. they said we are not going to find whether the voting rights act is, you know, still should be enforced. here is what john roberts said in an opinion in that. things have changed in the south. voter turnout, registration rates approach parody. evasions of federal decrees are rare and minority candidates hold office at unprecedented levels. indicating the time for all this heavy handed, telling georgia what it can do is over. this would be pretty big if they take the voting rights. barbara? >> the first thing we have to think about is the texas redistricting case, the court has to do something with that case. it either has to, you know, it either has to accept it and review it or affirm or reverse. that is the first case that is really before them. then, you have the county case, which is the -- too, as they

say, which is, once again the question of the constitutionality of section five. this question comes in two ways. what are they going to do? >> i think it's very important for people to know this is not past history we are talking about. in 2006, the record that we, that civil rights organizations, the lawyer's committee for civil rights and others put before the congress showed that between 1980 and today that there hanover 4023 objections by the department of justice because of purposeful discrimination. it's not accidental. purposeful discrimination. we are living in an age where even though the voting rights act has been transformative to our nation, people are still doing everything they can to

dilute, to take away the power of the black and latino voter. >> doesn't roberts have a point when he says the south has changed and also -- you are so concerned about voter suppression. where is that taking place? ohio, pennsylvania, wisconsin, michigan. all these states have went public in 2010. isn't the rest of the country just as racist and just as discriminating? >> here is my response to that. i think crawford, the supreme court case that allowed voter id in indiana was a bad decision. let's extend -- i think the voting rights act gets it right. i think it should be applied everywhere. >> but that's not what the voting act right says. >> i know that. that's my personal voting rights act. >> here is the point. your observation about the past, you know, it's the william

faulkner saying it's not past. i think, here's the deal. shelby county, alabama, there's a petition of the supreme court, in our view not clear the court should take the case. the court has affirmed this provision four times. there is a very substantial record. 16,000 pages before congress when it reauthorized the voting rights act, this provision in 2006. but, here is the key, again, justice kennedy is the swing vote here. there's always been a gap in coverage as it turns out, the state of texas wasn't covered by the initial 1965 act. ift was added in 1975. it's always been the case. the question is, are we going to defer to the judgment of congress that this act is still necessary? is congress' judgment reasonable? >> respond to jeff's argument. the way, the strangeness of the voting rights act is the

strangeness of american politics, the strangeness of slavery, the civil war reconstruction and everything else. specific geographic regions where we have a process for and the argument that jeff is making, hey, look at the region's we don't have the special process for. they are doing the same stuff. what is the justification? >> there's a history in the jurisdictions. that's the judgment of congress. are we going to second guess congress' legislative judgment for this provision going forward? >> the circuit court found, when you look at section two enforcement in particular, over 50% of all those cases came from the south still. you have to really look at where are the -- where is the act of discrimination? think about it. 57% of all african-americans live in the south. you know, the latino population

is growing rapidly in the south. so is the asian-american population. they are great issues. that history cannot be cause. >> florida is one place where they have -- they are pushed it. it is a covered district. federal court struck it down. i want to get your thoughts on this after the break. [ female announcer ] ordinary lotions aren't made to treat eczema,

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we are discussing the fate of the voting rights act, which many observers feel will come before the court. you had something to say? >> this landmark statute coming out of the second reconstruction from the 1960s is an echo of the construction in which some states were singled out for

treatment and weren't allowed into congress unless they promised to vote. this actually, you know, there is a history here. it goes all the way back. one argument is, yeah, but it's all long ago. if a jurisdiction kept its nose clean and hasn't violated, it can bail out. if some jurisdictions haven't been covered, they actually get thrown in. >> so, this is actually based on what eegs happening. it's not locked in. >> exactly. >> this is in a way the perfect storm. we talked ant the obama care case. that was deference to congress or not. this actually is in the constitution, section 5, not the statute, but the 14th amendment. it's referring to congress. the state's rights argument. this isn't fair to states. what else did we talk about? texas 'affirmative action.

in order to avoid a finding that you have discriminated against minorities, sometimes they might have to take race into account and do a racial affirmative action. that gets some conservatives upset about this. this is kind of a perfect storm of affirmative action deferring to congress state's rights. >> can i jump in here? it's interesting, we have a powerful narrative that progress is inevitable. with respect to race, i think what we see is progress is more fitful. we have significant progress which we are seeing in the wake of the 2008 elections. since section 5 sits that that space, it recognizes we have a past of historical discrimination and congress made a judgment that problem is likely to continue, which is why the covered jurisdictions need to seek it. the second point is the coverage gap issue, where some states are

protected and some aren't. it's ironic. if you look at the jurisprudence on race, the core fundamental presence it rests on, it should be targeted and narrow. focus on areas that have the most problems. that's what section 5 does, the reauthorization did in 2006. it's focused on the states with the most difficult history. >> it's the beauty of it. it really authorized it, they made one important statement to everybody in this country. they said the right to vote is critical. this is fundmental to being an american. >> not according to justice scalia. >> we did not allow this right to be infringed. repeatedly these jurisdictions have to learn to be truly american and fair to all of their citizens.

>> if you are looking at the history, what's happening is in the south, as the white democrat essentially dies off, barack obama got 10% of the white vote in alabama, 11% in mississippi. as of the 2010 midterms, you have this situation now where you have majority republican state houses that are essentially that are all white, more or less, then minority democratic state houses that are majority black, in many cases. this fear that you are going to have a permanent majority. >> i had a conversation with jason carter, a state senator in georgia, jimmy carter's grandson. 36-year-old state senator. he was saying, you know, i'm for the voting rights. i'm a democrat, i love the voting rights act. one of the problems is, it has encouraged exclusively minority

district. i want to have an sbe gratd district. i want a district where i appeal to white and black voters and especially in the earlier days of the voting rights act, there was sometimes the unholy alliance between african-american politics and white republican legislatures which was throw all the african-americans in one district. it will be represented by a democratic african-american forever. >> right. >> then everything else will be right. it's a problem. >> i say to that argument, why don't you have the governors. why lose the statewide offices. it doesn't have to do with redistricting. the fact is, the democrats have been losing for different reasons. i don't want to get into all those reasons why they are not real popular with white americans in general. >> in the south, particularly. >> in the south. i want to point out, it's not all the law. >> it's also important to

recognize it matters for african-americans to have the opportunity to elect candidates of their choice. the rise of influence in districts. it's important for there to be, you know, african-american and latino representation in the halls of power. >> that's been a principal. barbara, elise, great discussion. thank you so much. >> thank you. should we accept insult as an exercise of free speech? arrested for spray painting an offensive ad joins us next. om dk great. and every footstep should tell us we made the right decision. so when we can feel our way through the newest, softest, and most colorful options... ...across every possible price range... ...our budgets won't be picking the style. we will. more saving. more doing. that's the power of the home depot. right now get $37 basic installation on all special order carpet.

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angered by an american anti-muslim film clip trying to quell the criticism that he's looked weak on foreign policy. in his last big speech on a global stage before the november election, president obama said this -- >> as president of our country, and commander and chief of our military, i accept people are going to call me awful things every day. and i will always defend their right to do so. we do so because in a diverse society, efforts to restrict speech can quickly become a tool to oppress minoritieminorities. we do so because given the power of faith in our lives and the passion, religious differences can inflame. hateful speech is not repress n repression, it's more speech. the bigotry and plas fi and lift up the values of understanding

and mutual respect. >> inside subway terminals here in new york, the mta is running this ad. it reads in any war between the civilized man and savage support support israel, defeat jihad. the ads come from pamela gellar. she is the co-founder of an organization called stop islamization of america with a long history of anti-muslim paranoia. the mta rejected the ads initially. they won a court ruling. the ad went up last week in ten subway stations. thursday rksz they approved new guidelines for ads that include as disclaimer. right now, i'm joined by mona, an egyptian-american journalist arrested for spray painting the ads. it's wonderful to have you here. >> thanks for having me.

>> let's show this video of what happened. you went out as an act of civil disobedien disobedience. this is what transpired. there was a new york post reporter camped out to catch what might happen. take a look. >> mona. >> get out of my way. >> what right do you have to violate free speech? >> i'm not violating it. if you don't want paint on yourself, get out of the way. i'm doing it now. >> you have a lot of nerve, mona. you are violating free speech, no, i eem not. i'm expressing myself speaking against hate. >> this was an approved ad, mona. i need to know what you are expressing me for. it's my right to know what you are arresting me for.

>> you were arrested and spent time in a holding cell. there's two things to talk about here. the principal of free speech, tolerance and that. can we talk tactics? here is my deal. there's a great internet phrase called don't feed the trolls. this is great wisdom i try to take. when someone tries to basically get a rise out of you with idiot si. don't rise to the bait. this seemed like it was an exercise in feeding the trolls. why did you decide to do this? >> first of all, this ad is more on idiotcy. you know the film, it was idiotcy. this is seen by millions of people. this is an ad that comes 11 years into muslims and arabs. 11 years after 9/11. attacks that no muslim i know

has ever condoned. 11 years after the citizens of new york, new york is here constantly being called upon to apologize for something we didn't do. this is an ad that is against being against israel and jihad. this is a false choice. it's more than idiotcy. >> stipulate that, agree with that. you went and spray painted it. now i'm showing the ad on my television show. what is the statement there? is this an act of disobedience. i'm violating a law and spray painting it, i want to make a statement? >> yeah, i'm standing up to racism and hate. i don't think we should be quiet or bullied into silence in the face of racism and hate. this country, i'm a u.s. citizen. this country has a long and proud history. i was prepared to be arrested. i wrote to my friends and said i

might be arrested. i was arrested. i'm proud i was arrested and i would do it again in a second. we should not be bullied into silence. big gots and race cysts have a lot of money and thinks her money can silence us. >> how is she silencing you by putting an ad on the bus? >> it's in the subway? >> in the subway. >> chris is saying why did you feed the trolls? this ad must be responded. >> she didn't silence you. >> saying it's a publicity stunt. >> i'm not trying to silence you. that's why you are sitting here. >> she's bullying, not silencing. the silencing is coming from others. i refuse to be bullied. that's my point. >> there's an alternative, ignore the troll. there's another possibility, too. it is a counter speech that doesn't deface private property.

but, takes that ad, creates a photo shop, create your own spoof of it. >> other people have done that. >> on the internet. that's what president obama was calling for when he said more speech. >> right. >> that was another alternative. >> i want to ask about that. >> that's a great point. as i was telling you on the video, two hours before i did what i did, i saw a man on 49th street rip a poster saying this is beep, new york city. this is unacceptable. i did not want to rip the poster. immaterialed to write racist on the poster. i chose pink for many reasons. it does not remove the words. i did not want to remove the words. i could have chosen black. >> i want to talk about the innocence of muslims, the other big thing and what kind of free speech and insightment and where they might rub up against each other after the break.

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we are dealing with the fallout from this -- these protests that happened across much of the i would say muslim world, not just the middle east they happened in bangladesh and pakistan about this video on youtube. what was your sense or your reaction to what happened in egypt, which is where you spend a lot of your time, in reaction to this? >> i was there when it happened outside of the u.s. embassy. it was right wing provoking the right wing. the way i saw it is that egypt is going through a lot of change right now. we have an extreme right wing who initiated the demonstrations. they are panicking. they don't know where they fit

in egypt as i moves on. this country is on the right and panicking because they are on the right with an election coming. two right wings addressing each other. my position all along is this is the dying cry of the right wing. i believe in the right to offend. i don't think anyone should be protected from offense. i believe i have a right to protest that offense. >> jeff? >> it's not just the right wing that is angry at what's going on in the islamic world that is the extremist part of the movement. i guess i'm a little -- there's a little equivalence in what you are saying that seems false to me. i mean, the fact that, you know, people were attacking the embassy and going back to the danish cartoons about muhammad and people died. it's in the just the right wing that is upset, it's across the

political spectrum. >> here in this country or egypt? i'm talking who initiates the protests. >> across various muslim countri countries. the man who made it in this country belongs to a right wing who provokes. of course the acts of violence and at least 14 people were kills during those weeks that i was in cairo. at the same time, you have a large population in the islamic world that is angry with the united states for the invasion of iraq, the war in afghanistan, the attacks and so many things. we are talking political anger manipulated and used. >> muhammad morsi, who is, i guess the president of egypt? that's the term, president of egypt? >> yes. >> elected in the elections since the fall of mubarak has been proposing blasphamy laws.

basically, you can't do certain things, certain kinds of speech, you know that are derogatory to muhammad. what is your thought? >> i agree with the right to offend. when you look at pakistan or any other part of the country, it comes up a lot in pakistan. they use tools. i reject. that's why i was telling the woman in the video, i'm using speech. i want to discuss, what is protected speech. if you have the right to be racist, where does my right end to respond to a racism and bigotry. i want to silence minorities and people who don't agree with the government. >> an argument i heard is that

our -- in the last 30 or 40 years, there's a lot before that during periods of scares that was tolerant of fairly severe limitations. you hear people and i heard a great mpr report of folks in tunisia, look, in europe, you cannot deny the holocaust. there's all kinds of restrictio restrictions. why can't we draw the red lines? >> you heard earlier from president obama a wonderful defense of american style democracy, american exceptionalism, if you will. democracy isn't just about voting. it's not one person vote one time. it's a culture. it thooz involve free speech, part of which will be the right to voice opinions that other folks won't like and i thought the government should not be in the business of suppressing opinion. you heard that from a constitutional law profess sor.

we have the most robust freedom of speech. speak up against it. before we had the first amendment, i got word in this month, the 225th anniversary of the year when the constitution was presented to the people. this audacious continental wide vote, not just vote, but amazing free speech experience. for one year, up and down a continent, the most wide open, robust, uninhibited free speech, intense opinions, no one dies. the whole year, you compare it to the french revolution or american revolution, proand against and that is the tradition that barack obama, i think wonderfully defended at the u.n. american exceptionalism. >> immaterial to ask with us being an outlier means we lose sight of the fact free speech

can exist right after this. up s, brochures, posters copies of my acceptance speech. great! it's always good to have a backup plan, in case i get hit by a meteor. wow, your hair looks great. didn't realize they did photoshop here. hey, good call on those mugs. can't let 'em see what you're drinking. you know, i'm glad we're both running a nice, clean race. no need to get nasty. here's your "honk if you had an affair with taylor" yard sign. looks good. [ male announcer ] fedex office. now save 50% on banners. so it can feel like you're using nothing at all. but neosporin® eczema essentials™ is different. its multi-action formula restores visibly healthier skin in 3 days. neosporin® eczema essentials™. who have used androgel 1%, there's big news. presenting androgel 1.62%. both are used to treat men with low testosterone. androgel 1.62% is from the makers of the number one prescribed

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>> we are talking tabt president's speech. you made an important point that i think, because we don't spend a lot of time thinking comparatively, all the liberal democracies have much more routine curtailments on speech than we have here. but are not dictatorships. it's compatible to have free speech and principle and more curtailments. i wonder if we, you know, why should we have our system? why have this first amendment that is so blanket that allows so much that, you know, allows for the kind of insightment that gets up loaded to youtube? >> president obama gave a couple reasons. one that i read into what he said. at least we should have it because it's ours and our

tradition and has worked well for us. he said, if you are skeptical of government, the folk that is government are going to oppress first, in the name of protecting against offense might be minorities of a certain sort, blasphemy laws. if you are suspicious of government, which is part of our american dna and if you have a tradition in which free speech worked very robust. where did we get the first amendment? from the exercise of where we actually spoke. the freedom of speech came in the text by the unwritten constitution of the practice. our practice of free speech has been a great one. the abolitionists were offensive and people tried to shut them down. the civil rights movement folks, saying we are stirring things

up. there's a history. >> i think it taps into a libertarian tendency is part of the american dna, which is not necessarily liberal. free speech tends to be an argument that unites liberals and conservatives in surprising ways. >> exactly. that's right. >> we started talking about citizens united. this is a conception of free speech that extends to corporations and spending money. concepts that are very foreign over seas and certainly controversial in this country as well. again, comes from the same idea that when it comes to speech, we don't want the government interfering at all. >> the decision is done from mcconnell and others looking to obliterate it. their arguments are made in speech terms.

that's it. you have been spending time in egypt and here. i think there was a mass of people who were the core of the folks helping to bring down the mubarak ring. a coalition of diverse interest. you have people very devout, very orthodox muslims and liberals. once the elections happened, there was a concern about whether people who are liberals like yourself are going have purchase on the new egypt, say fighting for a first amendment or speech. is there constituency for that in egypt or is this a small minority that now that the big boys are in charge the muslim brotherhood must pay attention to it? >> they must pay attention to it. the muslim brotherhood understands their candidate only got 25% of the vote. that's really their base

support. what's happening in egypt is the kind of intense discussions that led to your first amendment. my concern, the egyptian side of me now, the american side of me loves the first amendment. the right to free speech and protest. the egyptian side of me questions again and again. why is use of administration supports dictators. don't encourage a move that denies us of the first amendment freedoms. i want to rights that protects the minorities in egypt in the way minorities here are not attacked. >> this is where the rubber hits the road. you are sitting in the white house and trying to negotiate this incredibly difficult, unmapped relationship with the new elected leader of the largest arab country in the world. muhammad morsi says we are going to have a blasphemy law.

do you want to sever the relationship because of that? western imperialism could imply there if they condemn it. >> listen to the cause of your people for freedom because it's what they want. one last point, morsi, who right now in egypt we have two young men, one an atheist and one a christian from egypt who are standing trial for blasphemy, atheist and offending a president. the same president, morsi, says i have instructed the consulate in new york to look at it. here their freedom of speech is not allowed. by the current government. >> what happens when the people in the muslim world want the oppression of women, want stuff that is so offensive to us --

>> who says they want it? the people on the streets are demonstrating were 200 -- >> it's plausible to me. forget about pressure on women. if you put it to a referendum in egypt it could pass. >> see what blasphemy laws have done. they are used and people recognize it to target minorities and political opponents. we have to get beyond the idea that people support the oppression of people's rights. that's not what it's about. you have a bit of rights that oppose the majority, correct? i don't want the majority. >> that's the point. >> that's the problem. >> there's curtailments is part of erecting it. >> the majority of people don't believe in women's rights or christian rights in egypt? >> they don't? i don't know, i'm asking as a question. >> i don't know. i want to put in law everyone's right is guaranteed as it is

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so, what you know for for the week coming up. you should know that pennsylvania judge robert simpson has until this tuesday to decide whether to block implementation of the new republican law requiring citizens to show photo i.d.'s before they vote. the standard he's been ordered to apply is whether the state has made it free and easy for citizens to get such i.d.'s. at a hearing on thursday, citizens said they had not been able to get i.d.'s freely and easily. the people disenfranchised are democratic and b, the voter fraud laws that they prevent does not exist in any significant way. you should know that campaigning in ohio this week, mitt romney

held a roundtable on the economy listening to presidents and business owners and others. he told the washington post, they did not invite workers or middlem managers because they did -- the office supply company staples. you should know that romney originally passed on veftding in staples after getting misstated numbers from those -- you should know when you vote six weeks from now, that some politicians asking for your vote considered this a transactional exchange. if you want to just contact the person who is supposed to represent everyone in their district, some of them want you to give them money first. one of the republicans is congressman todd akin running against claire mccaskill. here's his recommendation for how constituents can reach him. >> sounds self-serving. but you go out and somebody is

working on a campaign and you find out that -- [ inaudible ] some people say yes, they write me a decent check and then oh, i remember that. write me a decent, check, oh, i remember that. fact check, they do remember that. you should know the first presidential debate of 2012 is this wednesday night. i hope you'll watch me and the msnbc team as we bring you special coverage anchored by rachel maddow. what appears to be the first time the republican and democratic parties commission on presidential debates has told the candidates ahead of time what the topics will be, including the economy, health care and the role of government. but is refusing to tell the public the terms of the debate. no matter how polarized elections are, some things both parties always agree on.

barbara from the lawyers committee under civil rights law. i want to find out what my guests think you should know this week. jeffrey, up first. >> every state that has voted on same-sex marriage has voted it down so far. this year four states will have slightly different but all essentially referendum on same-sex marriage. washington state, maryland, minnesota and maine. all of them according to the polls could actually pass same-sex marriage which may have a bigger impact on the debate than any court decision. >> we didn't get to it today. but there's the very likelihood of the defense of marriage act coming before the supreme court. it's already been struck down by an appellate court in boston as unconstitutional. we may also get proposition 8, which has been struck down in california coming before the supreme court as well. we have possibility of huge gay marriage judicial issues as well. >> bara? >> we want to make sure that

voters know they need to register to vote and registration deadlines are going to start closing this ten states on october 6th. then the 7th, 8th. 9th through october 16th. people need to get serious right now and make sure that you're registered to vote. if you have any questions call the lexapro tex hotline. that's 866-687-8683. >> we'll put that up on our website. what you should know is that the conventional wisdom that no one pays attention to the bottom of the presidential ticket is a little overstated. this week, we saw some interesting evidence that was actually featured on your show yesterday that seniors are beginning to move dramatically toward obama. there's a possibility that this is because of ryan in a whole bunch of ways and obama has never been able to close the deal for seniors. he looks like a whipper snapper compared to john mccain or

barack obama. ryan who is younger, who doesn't understand the concerns of older americans more, if so, i think since 1992, actually, the party -- if obama were to go on to win, since '92, the party with more sober and serious vice presidential candidate actually will prevail. >> very interesting. mona eltahawy. october is breast cancer awareness month and since i'm associated with pink now, i am encouraging those to self-exam and get mammograms and seeing as i've been associated with the anti-muslim post -- will you come out to a subway station with me where i will take off my blouse and bare breasted dem station in store of my tattoo. i hope you're watching. reporters, i want -- jeffrey toob in, author of the oath, the

obama white house. barbara arn wine for the -- akil ammar and egyptian american journalist, mona eltahawy. >> our guests will include joseph stig litz, columbia university and author of the book of price of inequality. up next is melissa harris-perry. on today, debate club preview edition. her 10-year-old daughter parker will make a special appearance. that's mep mlissa harris-perry coming up next. the first 2012 presidential debate coming up this week. denver, colorado at 5:00 eastern continuing at 8:00 eastern with team coverage. along with chris matthews. ed schultz, lawrence o'donnell. steve schmidt and yours truly. [ thunder crashes ]

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